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Poort ara cree recy OTL mead see ee Te ornare CLEEVENTS 1.0 CLE : NOON :: FREE TO HCCLA MEMBERS :: No Registration. Come early to reserve your seat. Criminal Justice Centr, 1201 Franklin Street, Houston (7th Floor), Texas 77002 RUE So Om ey Pee eC Gam aed ce Mae ene ee eee cm ee ee eee LY CCLE starts at 5:30 pm. Happy Hour CLE wil be held on Jan 30 & the last Wednesday of each month bopining February 2014 Se CE Re ec am eee . Feb 27 :: Criminal Appeals: A 21st Century Approach EO oe Nees SOO EL aL Le Tem sa Lea ee ee DOUBT CALL-IN TALK SHOW Hosted by Todd Dupont / Thursday Nights / 8pm Join us in discussing criminal justice issues in Harris County with weekly guests. Sponsored by HCCLA. Houston Media Source Comcast (Channel 17) ATT U-verse (Channel 99) Ce CNL) ona PRESIDENT ELECT Carmen M. Roe VICE-PRESIDENT Rand Mintzer Aa Mey TREASURER Stoven H. Halpert ST Mee mao Pree ori DOL ak Bemett ora era Suerte el Nathan Mays Davi yan ee ae A aera PAST PRESIDENTS 1971-2012 enemies Rea Re erect peat) Sonera Per) Noe Nn Een Peay re een] aes ee mae ie ae Dey Cues Oy PS ria Nera Mo eee Papen’ any er an’ eta is Near) hive eon CONTENTS 2: CLE Events 4 ::A Word from our President “Would You?” by Todd Dupont 6 :: Winning Warriors Future Warriors 10::HCCLA News Round Up 10 :: Welcome New Members! 10:: Happy Hour and Back To School Drive 11 :: 5th Annual Family Fall Festival 12:: Indigent Defense Seminar jiscovery in Texas - 2014 * The Beginning of a Brave New World of Faimess by W. Troy McKinney 26::11 Essential DWI Trial Tactics by Mark R. Thiessen 32: :Black Bart or Black Robe? HOGLA Ethics Article by Robert Pelton 34: :Practice Pointers 34: Criminal Lawyer Checklist by Mark Bennett 35 =: Meeting a Potential New Client ‘by Mark Bennett 36 =: Can You Afford an Assistant? ‘by Pat McCann 37 :: Setting Up Client Files by JoAnne Musick 38: :2014 HECLA Banquet Save the Date :: May 8, 2014 39: :HCCLA Extras Ad Rates New Member Application Would You? “And if thine eyes be turned towards justice, choose thou for thy neighbor that which thou choosest for thyself.” —Bahd'u'llch One of the questions that I typically ask the venire panel is: “Assume for the moment chat you were charged with an allegation like this. Given what you know about this case thus far, would you want someone like you to be on your jury? Why or why not2" Of course, the answers are always as different as the people providing them. Sometimes, this question can lead to a challenge for cause; other times, maybe a preemptory challenge. Sometimes, the answers to this question opens the door for additional opporeunities to keep prying, in an effore co further chip away and expose the biases, motives, leanings, and prejudices. intrinsically inherent in all humans. ‘Through this query, if the cial lawyer can get the prospective juror reflecting upon themselves (in che context oftheir potential future role as a judge of the “facts” of the case), and deeply considering and contemplating the answer to this question, trial counsel will be able to lear valuable information about that individual in a relatively shore period of time (of course, chs presumes that their answers are truthful) urs is not an easy profession. Jury selection is critical time in a criminal trial. Yee, think about the process for a moment. Strangers, with specific pre-qualifications, from all differene walks of life and corners of the county, by random lot, are hastily assembled together, and after some waiting and answering some questions, are immediately deputized to sic in judgment of another accused of a crime. This really is ‘an abnormal, if not surreal process. © woeoen a word from our president hdd SDisont Right before the trial begins, I like to inform the panel: “This is not going to be an easy process. This i an adversarial proceeding. You are font row, center at boxing match, and the gloves are off, Now, while [anticipate thee the trial will be conclucted in the utmost professional manner, make no sistake, this isa contested matter. My clien is affirmatively and expressly telling you that he is not guilty of the allegations that have been levied against him by the ‘government. Furthermore, understand that the government is going to be doing everything in theie power to urge you to take their side and convice my client. That is thei job. That is one of the main reasons why we are here. The government is claiming that chey believe thac my client has violated the law. Through me, the accused is telling you that he did noe. Defending him in this process is my job, and I ean assure you that Iwill do everything within my power under che law and the rules of professional conduct to make sure that the _government does not succeed in ies endeavor. No, this is not an easy process. Infact, as my grandmother used to say: ‘fie were easy, everyone would be doing it.” Tend my presentation by celling the panel chat while my client and I are honored that they obeyed their jury summons and civic duties by showing up, Idon't envy them. Promptly framing the seriousness of the matter helps sets the necessary tone (and, perhaps, reverence), which is in a jury trial where the government is alleging criminal misconduct. Which brings me to us, the criminal defense lawyers, and our role here. THRARIITAIA Defense counsel is the single most important person in the courtroom during a jury trial A complete and thorough understanding of criminal law and the rules of evidence are essential. Yet, our carefully crafted voir dire questions can be invaluably instrumental in weeding out venirepersoas; our precise cross-examination questions can render crucial government wienesses impotent; our opening, statements sive us the ability to inseruct the jurors just how we wane them to examine the evidence and analyze the issues; our summations allow our personalities to shine, legal prowess to roar, and theories to be fully realized, while simultaneously planting seeds of jury empowerment ot nullification. Of course, these are just a few examples of the countiess ways that defense counsel's role isso critically vital at the tral stage. If you were to sit down and examine of the importance of defense counsel's role in a criminal trial, I ‘would imagine that the longer you do this line of work, the ‘more that you will find thet our job is ever-increasingly humbling, and if not outright daunting. For, there isa lot on the line for the accused in every cximinal cae. the charge. Some in defense bar are exceptional advocates for their clients. Some are only concerned aboue submitting vouchers, and never even take the time to lesen their client's name Nacunally, chere exists a vast spectrum of folks in between. ‘Which one are you? Recently, while preparing for trial, Iran across one of my previous jury selection PowerPoine presentations, and i¢ got me thinking. Ie got me thinking sbout our profession, and my role within our profession. Changing the hypothetical a litle, I asked myself: "IE were charged with a criminal offense, would T want someone like ‘me representing me." This turned out to be a rather profound inquiry. Even though I do not advertise, I have been blessed, thankfully, with a steady client stream (both fom retained clients, and ftom federal and state court judges crusting enough in my reputation and work ethic co allow me the privilege of representing the indigent accused in their court). From the standpoine of being busy, Lam grateful to report that I have no shortage of work. And, while the indigent clients do not get to pick me, the retained ones do. Often, after [am hired on a criminal case, I pause to reflect upon the fact chat the client chose me out of, literally, thousands of other lawyers in the market. Furthermore, for reasons that I cannot explain, I am usually hired by an overwhelming majority of people chat I interview. These things puzzle me, While I (and my children and creditors) am thankful that this happens, it also spikes my curiosity as co juse why these things are? Hiring a lawyer is usually a big deal. Hiring a lawyer to protect you from criminal allegations is an even bigger deal. Sometimes, this means the difference of how one is publicly labeled in society. Sometimes, this means che difference between where one gets to live in society, Sometimes, cis ‘means whether or not one gets to continue to exist in society. If you are willing to ask yourself this question, then you will probably need co take the time to think about a few other things as well. I found myself asking some basic questions like: Who am I? What do other people think about me? Or know about me? Or think they know about me? What image do I intentionally ot knowingly portray while selling my services as a lawyer? What are my strengths as an advocate? What are my weaknesses? How well do I actually perform my job? How well do people perceive thet I perform my job? Of course, che questions can become endless, but the issue becomes one of self-awareness. At some point, I believe that all true practitioners of our crafe should have self-awareness, and should take the necessary time to think bout these types of questions for themselves, at some point in their practice. my columa today, I challenge you to pause and ask yourself the following question, and then deeply consider and contemplate your answer: “If I were charged with a criminal offense, would I want someone like sme representing me.” "iF find ourelf nawering “no” to thie question, i likely high time oe thae carer change you have no doube been conskering. I hear hey are Nagar Waris weenie @ OT DOs Congratulations to the trial lawyers and appellate team of David Adler, John Hagan, Jack Camegic, and Christine Wood for a landmark ruling out of the 1st Court of Appeals. The opinion vacated a 30-year murder conviction of a minor who was certified as an adult at 16. The court held that the juvenile court abused its discretion in certifying the minor. This certification ruling resulted in the first reversal in more than 20 years! Congrats to Jim Hanley for fighting out a family violence case in Brazoria County and prevailing with @ knockout! Judge granted a partial directed verdict. Jury then quickly disposed of the rest, walking Jim's client on alll charges. Our own Robert Pelton had his lengthy carcer achievements. in criminal law read into the U.S. Congressional Record by Congressman Ted Poe. A well deserved honor. ‘Troy McKinney earned a directed verdict in Fort Bend County on a DWI. After the jury heard evidence and Troy's expert cross of the trooper, they were excused for a 30-minute suppression hearing. Motion granted, state rested, and DV of acquittal followed. Congrats Huge win by Stan Schneider who got a reversal in the Ist Court of Appeals where the trial lawyer took the fifth on a claim that he misused his client's restitution funds. Client pleaded guilty to engaging in organized criminal activity (aggregate theft of over $200,000) and was ordered to pay $160,000 in restitution, then sentenced to 18 years. COA reversed and remanded based on IAC, involuntary guilty plea, and the trial court’s error in denying his motion for new tral Congratulations to Jordan Lewis for a huge DWI victory in Court 6. Gotta try ‘em to win ‘em! © wen Scott Pawgan had a tough burglary of a habitation case on his hands in Montgomery County. His client had 26 priors, 5 extraneous un-indicted felonies, and had rejected the state’s offer of 31 years at punishment. State then asked jury for life, but Scott convinced them to look beyond the paper trial, and they came back with 13 year sentence. Amazing result! Doug Murphy was victorious in Victoria! He won an astounding 15-minute NG on a negligent homicide case. Mark Thiessen and Mark Metzger take home a two-word verdict on a .19 blood test from Galveston County where they armed the jury with enough reasonable doubt on the reliability of blood results without an expert using pure disconnect. Thiessen came home to a 3-day breath test trial where he won a dismissal midtrial on a 15 minute violation ing blazed in and out In true warrior fashion Vivian of Court 5 with a NG! ‘Tyler Flood scored big in MoCo in a case involving an auto accident, a failed SFST on video, and a rooftop surveillance video of the crash with the client seen fleeing the scene on foot! Dustan Neyland went the distance for a client charged with aggravated assault. Dustan first got it reduced to an assault, then further investigation prompted the state to offer a nolle in exchange for a letter of apology. Stubborn client refused so Dustan took it to trial for the win! ‘Norm Silverman won a Sth Circuit appeal on his MTS. evidence obtained from a wire tap that led to his client's arrest for possession of cocaine. The court reversed and remanded for new trial. Congrats to Mark Thiessen and Mark Metzger for scoring a DWI NG in Court 15. Client was pulled over for driving the wrong way right in front of the criminal courthouse, but denied drinking and refused all tests. Cop forced a blood draw which yielded a 22 BAC. Mark got the blood suppressed, but the state pressed on. He helped the jury see his client's refusal as a scared citizen simply asserting his constitutional rights. Huge congratulations to Troy Bollinger for saving a young man’s life in a capital murder trial in the 179th. ‘Troy spent four years navigating a complex set of facts and legal issues. Jury deliberated 3 hours and came back with a solid NOT GUILTY without a lesser! Even more amazing is he originally asked for 20, but state was offering life and refusing anything less than 40. This is a truly life-saving victory! Troy especially thanks lawyer and friend Skip Lanz, investigator Carey Wellmaker, and mitigation specialist Gina Vitale for their expertise throughout. His client was only 16 at the time of the shooting and certified as an adult. He was a back seat passenger and confessed to stealing CW's car and handgun, then returning to wipe his prints. State dismissed the case against the driver at trial, The front passenger, who Troy claimed was the shooter, was found awaiting trial for another murder and was never charged in this case. The jury got it right, and Troy walked a very grateful client. ‘The Sth Circuit Court of Appeals granted Stan Schneider’s death row inmate client a new chance to prove he is ineligible for the death penalty due to mental retardation Congrats to Norm Silverman for winning a MTS in the 232nd. Client was charged with possession of meth while on deferred for possession of meth. Judge found there was no reasonable suspicion to detain the client. Excellent work! ‘Tyler Flood scores a DWI NG with a .18 blood draw and auto accident. Tyler had a full blown McNeely hearing where visiting Judge Oncken suppressed the blood based on the case specific analysis that there ‘were no sufficient exigent circumstances to justify a warrantless, 4th Amendment intrusion in to the vein, Fred Dahr won an amazing 15 minute NG on a sexual assault case in the 180th, with Brittany Carroll sitting second. Fred ripped apart the complainant's story. Client did not testify but the jury followed the law and found the state's evidence, including CW's tearful testimony and DNA evidence linking the client, too weak to convince them of non-consensual sex. Congrats to you both! Hats off to Cheryl Brown who won an indecent ‘exposure case for a Harris County Jail inmate who was caught... pleasuring himself. Congratulations to Brian Wice who garnered a big win in the Austin Court of Appeals when it reversed former House Majority Leader Tom Delay’s convictions and 36 month prison term for money laundering and criminal conspiracy, found the evidence legally insufficient and ordered him acquitted of both counts. Brian credits Dick DeGuerin, Matt Hennessey, Cat Bacn, Carmen Roc, and the countless other folks who took the time to read the briefs, offer their take, and provide the ultimate edge. Rick Oliver secured an acquittal in a felony criminal mischief case. A car was shot at with a pellet gun and client was pulled over leaving the area with a pellet ‘gun in plain site, This case started out as a simple misdemeanor with the state offering a dismissal if he would pay restitution. Client maintained his innocence so the state dismissed and re-filed as a felony with increased damages. Rick didn't back down and took it to trial, Great work! ‘acest (7) meee UU RCL LES Paul Kennedy successfully wins a DWI case in Court 14 on HIGN issues. We hear the scene video was quite entertaining! Congrats to Daria MeBride for an in-trial dismissal in Court 10. Apparently, Darla's cross of the lying CW in fan Assault-FM case was enough for the state to give up! Mac Secrest won a 3-0 reversal in the 14th COA on fa sexual assault case that had been remanded by the CCA on IAC. David Cunningham's role in filing and presenting the motion for new trial was also instrumental in yet another reversal of visiting Judge Robert Jones. Judy Shields secured a dismissal on a 1984 murder charge in Montgomery County based on a speedy trial violation. The police put the warrant in the evidence box instead of entering it into NCIC! She credits Mark Hochglaube for his helpful advice Congratulations to Franklin Bynum who got a directed verdict on a charge of giving false info to a peace officer. Frances Bourliot got a 30-year sentence reversed on Batson in the 14th COA. Trial lawyer Randy Ayers did an excellent job developing and preserving the issue in the 177th. Big vietory by two first-rate lawyers! Randall Kallinen settled a false arrestlexcessive force case for $36,500 against the City of Webster. The amount covered her damages and medical expenses after & Webster police officer threw her to the ground for talking, then arrested her for assault on a public servant. Connie Williams got her eriminal case dismissed prior to the lawsuit. Congrats to Juan Guerra and Leira Gracia for winning 2,13 DWI case in Court 4 Jonquin Jimenez got a2 word verdict times 2 on an assault and evading case in Court 15. Client was charged with punching a student at a college campus, then running from a cop. State called the complainant and one eyewitness on the assault, plus 5 police officers on the evading, Joaquin's excellent cross of the CW and the parade of cops led the jury to two NGs in 45 minutes! © wen Congratulations to Deborah Summers for winning a sexual assault auto life case in Project Court. Excellent lawyering! Deborah thanks RK Hansen for his assistance Chris Downey knocked out a.12 breath test for a client found sleeping at the wheel with his truck resting up against a tree. Testimony at trial revealed disturbing ‘maintenance practices at Central Intox. Great work! Big NG for Nate Tarlow on a PCS cocaine case in the 180th. At the time of arrest, Nate’s client took the rap for his wife’s cocaine in a vehicle stop. His charge was enhanced with 2 prior state jail PCS cases, and state’s last offer was 180 days. Nate took it to trial and the jury agreed with his voir dire and closing statement: “What kind of husband let’s his wife get arrested for this?” After hours they came back withthe right answer! Congrats to Tyler Flood for his DWI victory in Court 8 ‘lent had a rollover accident with 26 hospital blood test and .24 crime lab test. Tyler kept the blood out so jury had no intoxication evidence other than officer testimony that an ‘empty vodka bottle was found in the passenger seat. Must have been a magic bottle because the car was upside down! Congrats to Alex Bunin and his team at HCPDO! A recent study lauds the PDO for their fine work in indigent defense and does an analysis that puts the Harris County appointment system to shame. Keep up the great work! Jay Cohen got a nolle on a first degree PCS-WID case in the 208th. He dissected their search warrant so effectively the state decided to throw in the towel. Outstanding! Cynthia Henley and Paul Kendall team up for a win on an Assault-FM case in Court 6, CW testified that D punched her repeatedly and dragged her by her hair. State introduced photos of CW’s face showing blood on her mouth and nose, Paul crossed CW while Cindy turned the state’s expert. They successfully convinced the jury that D was the true victim and was justifiably protecting bimself and his property. Awesome win! Juanita Jackson and Monica Gonzalez scored a NG on a PCS case. Great work ladies! Im her first jury trial since leaving the Air Force, Amber Spurlock won a felony DWI with .235 blood results. After this top gun took on the chemist, the jury returned with a quick NG! Chris Downey disposed of a Capital Murder case for a cliont held in custody for 22 months. His investigation revealed the leading co-conspirator had previously tried to kill his client’s brother. The two had a long standing and well-known animosity toward each other, making the likelihood of them working together to plan arobbery highly unlikely. He also found the eyewitness identifications highly suspect and ultimately convinced the state to dismiss. A very satisfied client now breathes free air, Great job, another life saved! Mark Bennett scored a statewide victory for those convicted under the Texas "online solicitation of a minor" statute, In a unanimous decision, the Texas Court of, Criminal Appeals agreed with Mark that the statute was unconstitutional, and invalidated his client's conviction because the statute made protected free speech criminal, This victory means that hundreds more people across the state will be able to challenge their indictments or convictions. Well done! Outstanding result for Clay Conrad’s client when the Court of Criminal Appeals unanimously remanded, finding that a trial court should consider sua sponta giving an accomplice-witness instruction where the issue is raised under the theory the party was a co-conspirator, keeping the issue alive on appeal. Great work! La WM = yaVewbolstute-leles) nobody wants. Awe Te Congratulations to Erie Davis and Lori Gooch who secured an acquittal in the 337th for a client charged with murdering her husband. They argued self-defense for a battered wife with a long history of abuse. Not only did she win her freedom, but after all the evidence came out in trial, her in-laws gave her their forgiveness as well Fantastic result with an emotional ending that helped heal ‘wo families. Jose Ceja has had quite the winning streak: Assault-FM in Court 2, DWI no test in Court 9, DWI .124 blood test in Court 14, and DWI no test in Court 2. All NG verdicts! Robert Morrow and Amy Martin scored an impressive appellate win in a capital case from Fort Bend County. ‘They convinced the CCA to abate and remand the appeal to give a capital murder defendant the competency review he should have received prior to trial. This case focused heavily on the standards for competency to be tried, and the procedures to be used by trial lawyers and courts when these issues come up. Congratulations to those two for an outstanding win! Ryan Deck won a 2nd degree felony/racing case in Bell County, with Rick Oliver assisting in trial. Heart-wrenching case involving an auto accident that killed an infant and unborn child, and seriously injured the mother. They tured the state’s expert and convinced the jury not to turn this tragedy into another one. Jury came back with NG on all counts, Incredible victory considering, prior to trial, the co-defendant pled guilty to Aggravated Assault-DW and got 10 TDC. costo (9) GB olel voler HCCLA Welcomes The Following New Members: DOU TL TE Pee Nel Mule ed SE al Frank Mitchell ‘Cammie Cooper, McLemore Reddall Ardoin & Story, PLLC cro eee) Pe Us ee nea Se Da Cs oT ‘Anne K. Ritchie Ce ey Ede (Una ue) Genevieve M. Graham aT Peed Ce Happy Hour & Back? School A = HCCLA held its Annual Summer Happy Hour and Back 2 School Drive at Little Woodrow’s this year on August 22. Nearly 100 members came out to mix, mingle and donate to a good cause. Staci Biggar worked closely with the Mental Health Court and collected over $600 at this event. ‘She was able to purchase lunch kits and backpacks filled with school supplies for 17 probationers’ children, who ‘would otherwise go without. Special thanks to Staci and to all those who generously donated to this very worthy cause. Also thanks to Mark Thiessen who provided the buffet of appetizers and helped plan this gathering with Carmen Roe. Special thanks to | Andrea & Rand Mintzer and Steve Halpert for putting together this great event! rca (@) see = 5 r F mer the talent Co AP ‘TODD DUPONT BRIAN WICE JOANNE MUSICK DOUG MURPHY ‘TROY MCKINNEY Legiabve Unda: elvan Criminal What Every Criminal Lawyor —Exluingo Neualng Ethics and Changes nto Law aw Updat ‘Shou Know About the gent Discovery Altar the Te CCA E Beyond “uve Law Mica! Moron Ret f as ) om th P = } > el /* = eas MARK THIESSEN NICOLE DEBORDE MURRAY NEWMAN JOSEPH VARELA CHRIS DOWNEY Avances il Teciiques: _Sewal Assault Trial Successful rss Examination: Hanis Coury Pr Tal Vor Die: “hePathto Success ine Changing Landscape Tools ofthe Tred Matin Praca Loving the Paying Fld ' El . ¢ <- \ A TYLER F000 ED SILVERMAN MARK BENNETT NENT SCHAFFER TYRONE MONCRIFFE ood Draw Felony lobo Lega ties Mest Pre Til lvestgaion Closing Argument Prasteal Solio: Related Cases Sool Mediate ‘Tactie fromthe Mester Thinking Ousie the Box “ist Contry ‘casio (@) BURNS BAIL BONDS wa te ee 5 ® ae Family owned ~ and operated since 1971 Bilingual staff with over 100 years of experience * We advocate a paid in full attorney is a defendant’s best defense “ Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Interlock An Automobile Ignition Interlock Provider . John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 Criminal Discovery in Texas-2014: The Beginning“of a Brave New world of Fairness EWI dedi ens (@ @ vewraa CONTINUED The Beginning of A Biv New world of Fairness By W. Troy McKinney On January 1, 2014, discovery in criminal cases in Texas will enter a new era — one in which almost anything the defense wants to prepare its case must be produced by the State. Gone will be the days of on the generosity and charity of the prosecutor. Gone will be the days when prosecutors leveraged discovery availability by requiring defendants to agree to waive other discovery and motion rights. Gone will be the days when prosecutors only allowed @ visual inspection of offense reports and witness statements requiring criminal defense lawyers to take often voluminous notes. Gone will be the days ‘when prosecutors could hide impeaching information pretrial on the theory that disclosure of impeaching information was only required if the case proceeded to trial. The playing field in criminal cases in Texas will now be fairer and much more level as we truly enter the proverbial 2ist Century. Senate Bill 1611 (SB 1611), named the “Michael Morton Act,” was sponsored jointly by Senators Rodney Bllis (D-Houston) and Robert Duncan (R-Lubbock). They and their staff (especially Brandon Dudley (chief of staff and general counsel) and Megan LaVoie (general counsel), respectively) are due much credit for sheparding this momentous legislation and dealing with all of the competing and often contentious interests involved. It unanimously passed both the House and Senate. It was quickly signed by Governor Perry in a public ceremony where it was once again praised as a mechanism to lessen the likelihood of convicting the innocent. Of course, as with most things, how effective its reforms ultimately becomes in lessening the likelihood of wrongful convictions will depend on defense lawyers understanding and taking advantage of it, prosecutors understanding the Act’s requirements and following, its rules, and the courts enforeing both the letter of the law and the goals it sought to achieve. ‘The purpose of this article is to highlight the major changes and to Provide guidance to lawyers and judges as they seck to understand and adapt to the changes made by SB 611 to Tex. Code. Crim. Pro. 39.14. INITIATION OF DISCOVERY ‘A person charged with @ crime! who wants discovery must ask for it. 39.14 (a) provides “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit [discovery] ....” By its terms, it requires a request from the defendant, ‘but imposes no requirements on the form the request must take, The request must be directed to the prosecutor as the representative of the State. As a practical matter, these requests should be in writing. The Jas thing good lawyers want is an argument over what was orally said, heard, or understood. The request need be nothing more ‘than a letter, though it could also be in the form of a ‘motion, much as many requests for notice of things like extraneous offenses occur today. Though neither permitted, prohibited, nor required by the statute, it would bbe wise for the request to also be filed with the court and ‘contain a certificate of service. Memorializing the request in this way provides a record and eliminates arguments ‘over whether and when it was received. It would also be wise for counsel to obtain an acknowledgment from the prosecutor that the request was received. Unfortunately, the statute provides no precise deadline for the State to produce the requested discovery, except to require that it be produced “as soon as practicable.” What amounts to “as soon as practicable” will often depend on ‘what is being requested. Some things like offense reports and witness statements should usually be produced rather quickly ~ because itis almost always practicable to do so. Other items that may require a prosecutor to obtain them from a law enforvement entity or tid party may reasonably take longer. It is likely that most prosecutors will (and should) set up procedures to handle routine items. It might be beneficial in some eases for criminal defense lawyers to split their requests into multiple requests - segregating the requests by a rough assessment of how quickly the prosecutor might be expected to produce the items requested. Those items likely to already be a prosecutor's file could go in one request and items from specific other entities (such as a lab) could be in separate request, If you do not ask, you likely will not get discovery and, without a request, the prosecutor has no obligation to produce anything other than items constitutionally required bby Brady v. Maryland. THE FORM OF DISCOVERY PRODUCTION Gone are the days of taking notes. 39.14 (a) requires the State to “produce and permit the inspection and the electronic duplication, copying, and photographing” of the requested discovery. Defendants now have the tight to a copy of the requested discovery and prosecutors are required to provide a copy when requested. Of course, if all one requests is inspection, which will be appropriate in some circumstances, all one will get is an inspection. For example, if one wants to examine a piece of physical evidence, like a blood tube ora firearm, inspection and photographing may be appropriate while electronic duplication and copying are physically impossible. Lawyers should include in their requests the precise manner of production sought for each item requested, If you want clectronic duplication and copying, then specifically ask for it. If you want inspection, then ask for inspection. If you ‘want to photograph, then ask to do so, Lawyers should not, however, simply lst every possible method as a preamble to a Jong list unless each method is appropriate. We should not make prosecutors guess at how the requested items should be produced, 39.14 (a) specifically allows that “[tJhe state may provide to the defendant electronic duplicates of any documents or other information described by this article.” Basically, this provision shifts the ultimate printing or copying costs to the defendant. It allows the State to scan items, rather than copy them. Though this portion of the statute is permissive, it was sought by prosecutors so that they could choose to Provide electronic copies (scanned images) rather than printed copies. Though the costs of paper copies in any individual case are usually de minimus, when those small costs are multiplied thousands or tens of thousands of times, they can become substantial, I is no great burden on the criminal defense bar to print out scanned images. It also saves the time of having to scan them ourselves. CONTINUED :: Criminal Discovery in Texas-2014; ‘The Be; ig of a Brave lew world of Fairness WHAT CAN BE REQUESTED & WHAT MUST BE PRODUCED 39,14 (a) also sets out what can be requested, what must bbe produced, and the statutory exceptions. It provides for ‘a-request for and production of: [Alny offense reports, any designated documents, papers, written or recorded statements of the defendant ora witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state ‘or any person under contract with the stat. It is important to break this section down in order to understand each ofits component parts. Specifically listed items include “offense reports,” “designated documents,” “writen or recorded statements of the defendant or a witness, including witness statements of law enforcement officers,” and “any designated books, accounts, letters, photographs, or objecis or other tangible things not otherwise privileged that constitute or contain evidence ‘material to any matier involved in the action...” ‘Importantly, all yeitten statements by a law enforcement officer are included withit the statute, Thus, reports that are written wholly anit cnly on internal law enforcement networks (like surveillance logs and reports in_many narcotics cases) are sjesifigally included in the definition of witness statethents, ‘This statute also. puts law ‘enforcement officers on notice that their written statements like originally hand written notes) must be produced when requested. Gone are the days when one must get & court order compelling production of handwritten notes. It is also arguable that those who destroy their notes, knowing that they must be produced when requested, will have committed transgressions that will serve as the basis for litigation, not to mention comment at trial. Think about the folks at BP who are being prosecuted by the feds for destroying their original writings (text messages and emails) knowing that they might be required in the investigation and litigation, @ wens OF particular importance is the portion of 39.14 (a) that provides for production of “designated documents {and] papers... ..” The “designated” referred to in this language are items designated by the defendant. Thus, almost anything that constitutes a document or papet (and the words must mean something different from each other) is within the scope of 39.14, This includes as ‘much as can be imagined and is specific to the case and will vary greatly from case to case. Common items may include MDT logs, dispatch tapes and logs, 911 tapes, training records, disciplinary records (atleast of sustained complaints), personnel records, booking photos, payments to informants, and many more. This allows and requires the defense lawyer to tailor the requests to the specific needs of the case. Discovery is not limited to what is in the prosecutor's file. It includes items “in the possession, custody, or control of the state or any person under contract with the state.” Anything held by any law enforcement entity or other political subdivision of the State (basically, any non-federal government entity) is in the possession, custody or control of the State. It also includes items in “the possession, custody or control. . . of any person under contract with the State.” Thus, when the State contracts with a non-government third party, it remains obligated to produce items from that third party. This ‘most commonly occurs when the State sends biological samples to non-government labs for testing. Bottom line ~ when the state contracts with a third party, material from the third party becomes discoverable. Lawyers should not, however, have just one form discovery request that they use in all cases. Asking for DNA or lineup information in DWI cases will do nothing but make the lawyer look lazy and unprofessional. Discovery requests should be tailored to cach case, though there are clearly some items that will be requested in almost every case. Exempted from discovery by this section is the “work product of counsel for the state in the case and their investigators and their notes or report...” This exemption is limited, The item must constitute “work product” The scope of what is work product is beyond the scope of this, article, but notes by a prosecutor in preparation for the case are almost certainly work product. ‘This exemption is expanded in a later portion of 39.14 (a), which provides that “[t]he rights granted to the defendant under tis article do not extend to written communications between the state and an agent, representative, or employee of the state.” Nothing in the discovery statute, however, changes the requirements of the Rules of Evidence for production at trial of all statements of any testifying Witness, See Tex. R. Evid. 612 (writing used to refresh memory) and 615 (statement of witnesses in criminal cases), Additionally, nothing in this statute affects a trial court's power under Tex. R. Evid. 705 (a) to require pretrial disclosure of the full underlying facts or data. on which a testifying expert may rely. Bottom line ~ the Rules of Evidence still allow for discovery and disclosure of communications between a prosecutor and a testifying ‘witness to the extent that it falls within the scope of the applicable Rule of Evidence. ‘There is one very significant exception to the work product and agent-communication exceptions. 39.14 (h) provides that “(notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, ‘impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment forthe offense charged.” Thus, even work product and agent communications must be disclosed if it is exculpatory, impeaching, or mitigating. When {prosecutor or a prosecutor's investigator takes notes of 1 witness interview, those notes will ordinarily be work product (unless the prosecutor or investigator may testify in which case they become witness statements), However, to the extent that anything in those notes is impeaching, exculpatory, or mitigating to guilt or punishment, those portions of the notes must be disclosed. 39.14 (h) trumps, all other aspects of any limitation in the discovery statute, REDACTION OF MATERIAL Not everything is discoverable. 39.14 (c) allows redaction in certain circumstances. It provides: Ifonly a portion of the applicable document, item, or information is subject to discovery under this article, the state is not requited to produce or permit the inspection of the remaining portion that is not subject, to discovery and may withhold or redact that portion. ‘The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request ofthe defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this artic or other law. 39.14 (¢) only allows redaction of things that are not subject, to discovery under 39.14 (“document, item, or information is {not] subject to discovery under this’ article.”), and 39.14 only permits a prosecutor not to disclose privileged ‘material. On the other hand, 39.14 (c) allows a court to determine “wether withholding or redaction is justified under this article or other law.” Accordingly, itis likely that if some other law completely prohibits disclosure of certain types of information, a prosecutor will be justified in redacting it even if it is not expressly prohibited by 39.14 —at least absent some compelling argument by the defense specific to the case. As a practical matter, even ifthe initial redaction is not justified by the initial clause of 39.14 (c), 2 court, though not required to do so, may be justified in upholding such a redaction Itis seriously doubtful, however, that this statute will allow the continuation of the practice in some jurisdictions of routinely redacting personally indefinable information such as addresses, phone numbers, driver’s license number, police payroll numbers, and the like. On the other hand, social security numbers are seldom needed by defense counsel and may likely be legitimately (though not required to be) redactable. ae CONTINUED :: Criminal Discovery in Texas-2014: The Be; gz of a Brave lew World of Fairness Other provisions of the statue dealing with the issue of confidentiality of some personal information make it ‘implicit that such information is initially discoverable by defense counsel — even if there are limits of how and to ‘whom else that information may be disclosed. There would be litle point in providing limits on redistribution of such information if the information was not discoverable in the first instance, CONFIDENTIALITY OF DISCOVERY ‘Two sections of the new discovery rights create obligations and restrictions on dissemination of the material produced. 39.14 (@) is a general provision that applies to any disclosure to third partes of the material received from the State. 39.14(f) governs restrictions on disclosure in some instances, of some material, and to some persons on the defense team or witnesses. 39.14 (f) As a general rule, 39.14 (e) restrictions apply to anyone who is part of the defense team and prohibit disclosure ““o a third party [of] any documents, evidence, materials, or witness statements received from the state” unless authorized by court order or when the material has already been publically disclosed. 39.14 (e) provides: (©) Except as provided by Subsection (f, the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or ‘other agent ofthe attomey representing the defendant ‘may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless: (1) a court orders the disclosure upon a showing of ‘good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or (2) the documents, evidence, materials, or witness statements have already been publicly disclosed. Bottom line — if you get it from the State as part of discovery under 39.14, you cannot release it to anyone outside the defense team without court permission or unless the material is already public. Examples of material that may already be public includes booking photos and some 911 calls. 39.14 (£) contains restrictions on the use and disclosure by the defense team within the case preparation context. Itprovides: (D) The attomey representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attomey representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the ‘witness's own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone ‘umber, driver's license number, social security umber, date of birth, and any bank account or other identifying numbers contained in the document or ‘witness statement. For purposes of this section, the defendant may not be the agent for the attomey representing the defendant ‘Those on the defense team (excluding the defendant, who ‘may not be an agent of the lawyer for this purpose) “may allow a defendant, witness, or prospective witness to vview the information provided under this article, but may not allow that person to have copics of the information rovided, other than a copy of the witness's own statement, “In some instances, such as when a particular location o person's identity may be a central defense issue, it may be necessary that some material be shared with witnesses in order to effectively prepare for trial. Nothing in 39.14 prokibits such basic case work. Importantly, nothing in 39.14 (0) restricts the dissemination of material’ to experts retained to consult or testify in the case (the statute distinguishes experts from other witnesses), but it does include such experts as person's subject to the restrictions of the statute. Defense counsel should always expressly inform, preferably in writing, any expert on the case of the terms of 39.14 (e) and (f) asthe law ‘makes any such person subject to the statutes restrictions, On the other hand, 39.14 (f) does prohibit some of the information contained in the documents from being shown ot disclosed to the “defendant, witness, or prospective witness.” ‘The restricted information under 39.14 (f) includes “the address, telephone number, drivers license ‘number, social security number, date of birth, and any ‘bank account or other identifying numbers contained in the document or witness statement.” The goal of this statute is to prevent such information from being accessible to persons who may use it for less than legitimate purposes related to the case. Normally, this restriction will not present any material difficulties in the handling of the vast majority of criminal cases. There may, however, be some instances in which isclosure of this restricted information is necessary to {fulfill a lawyer's ethical and constitutional obligations — for example, disclosure of an address or date of birth to a witness to confirm ot rebut the accuracy of some case related issue. While 39.14 contains no specific remedy for such situations, no statute may abrogate the constitutional, right to effective assistance of counsel. The instances in which this may occur and when such disclosure may be necessary to provide effective assistance of counsel will not be common, When such situations do arise, however, lawyers ought to consider a sealed ex parte motion to the court seeking judicial authority to make the disclosure. Because the potential good cause for the disclosure will necessarily involve disclosure of case related strategy issues, as it does with Ake motions, the motion should be ex parte and under sea. Ifthe court grants permission, which it has the inherent authority to do ~the statute notwithstanding — to ensure that the statute does not become unconstitutional as applied, the lawyer will have both legal and ethical protection. Lawyers should be very reluctant to make the decision on their own and ought to seck advance court approval Though a lawyer's unilateral decision may ultimately prove defensible, it may also come with some serious pain in defending the decision. Caution is warranted. ETHICAL OBLIGATIONS EXCEPTION Lawyers have certain ethical rights and restrictions on public communications conceming the facts of a case, as provided by the Texas Disciplinary Rules of Professional Conduct, 39.14 (g) allows a lawyer to communicate in ways that are permitted by ethical rules, with restrictions intended to shicld alleged victims and witnesses from excessive, unnecessary disclosure of their identities (except as allowed by subsections (e) and (f)) and identifying information. Basically, it secks to prevent a situation ‘where prosecutors, law enforcement, or others have spoken, publically about a case and itis necessary, in the course of and to fulfill the goals ofthe representation, for a lawyer to respond to or rebut such public claims. ‘The statute strikes a balance by allowing disclosures in such circumstances, as permitted by the Disciplinary Rules, but prohibiting the disclosure of identities — that are not ‘otherwise exempted from restriction by subsection (e) and (f) = and other identifying information, It provides: (g)_ Nothing in this section shall be interpreted to limit an atiomey’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication, of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, drivers license number, social security number, date of birth, and ‘bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall Prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint, This awkwardly written provision both gives and takes. On the one hand, it recognizes, as it must to pass constitutional muster, that lawyers have both ethical and constitutional dutics that cannot be abrogated by statute. On the other hand, it then seems to exempt from the ability to fulfill those obligations the same kinds of information that may be necessary to fulfill a lawyers ethical and constitutional obligations, —_— CONTINUED :: Criminal Discovery in Texas-2014: The Be; ig of a Brave lew world of Fairness ‘This section is best viewed as a restriction on general, public communications of specific personal information not otherwise already public that may be allowed by the ethical rules PRO SE DEFENDANTS ‘The rules of discovery for pro se defendants are more limited and restrictive. 39.14 (4) provides, “[iJn the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, of information but is not required to allow electronic duplication as deseribed by Subsection (a).” A pro se Defendant may not obtain discovery by simply requesting it. It requires a court order. Even with a court order, the State is only required to let the pro se defendant view and examine the material, The State is not required to (though it may) provide electronic or other copies. With pro se defendants who are incarcerated, this is going to present some serious logistical problems, but they are ones that prosecutors and judges will have to work out. It may also have some equai protection issues, but those will have to be sorted out by the courts on a case-by-case basis, GRACE a charity for the defense of the indigent Never another sleeping lawyer... What can you do to help? Vist our website at ss gracela org. ‘COSTS OF DISCOVERY A prosecutor may not charge anything to produce the required discovery and nothing in the statute allows them to do so. However, under 39.14 (I) “a] court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.” This will require the State to file motion and obtain an order before any payment for costs of the discovery may be imposed. Ordinarily, this should not occur as the cost in seeking a court order for a few dollars in copying costs will most often not warrant the work required to secure the payment. In those rare instances where payment of costs by the defense may be appropriate (a court is not required to order payment of costs — the permissive “may” allows a court to determine ‘on a case-by-case basis whether it is appropriate), the court cannot order any amount in excess of what would be allowed under the Texas Public Information Act (TPIA).. ‘As a general rule, copy costs are limited to ten cents a page, though there may be other costs as well. The scope of costs allowable under the TPIA is beyond the scope of this article, but counsel faced with such a situation will need to closely examine the TPIA and the state agency rules (Attomey General) applicable to such costs. shhh enema ane se en ran ator @ wens DOCUMENTING DISCOVERY 39,14 contains specific rules for documenting and ‘memoralizing discovery. The goal of these sections was to eliminate hind-sight arguments over what was produced. by the State or received by defense counsel, 39.14 (i) and () provide: (0) The state shall electronically record or otherwise Scument any document, tem, or other information provided to the defendant under this article. (i) Before accepting a plea of guilty or nolo contendere, or before trial, cach party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article 39.14 (i) is intended to require the State to contemporaneously (either electronically in those Jurisdictions that have such systems or otherwise — typically in writing) record and document all discovery provided to the defense. 39.14 (j) requires that in ‘every case in which there is @ plea or a trial, each party acknowledge disclosure and receipt of alist ofthe specific items provided. As document retention policies for both clerk's and court reporters vary, it will be a better practice to have the disclosures made both in writing and on the record, Criminal defense organizations, prosecutors’ offices, and some courts are developing forms that will ‘comply with this statute, Both prosecutors and defense lawyers should obtain and keep @ copy of any written record of the discovery. ‘These requirements will take some getting used to, and are going to increase the paper work burden, but they are designed to protect prosecutors (from claims of a lack of disclosure), defense lawyers (from claims of insufficient pretrial investigation) and defendants (from deficiencies of both prosecutors and defense lawyers) from fading ‘memories that are the norm once cases are resolved. They are important for everyone, but will only be as effective as they are complete. ‘As with requests for discovery, no specific form is required, but it was intended to require sufficient detail to allow a third party looking at it (maybe years or decades later) to determine what was produced. For example, merely stating “offense report” is insufficient to protect anyone. A more appropriate description might be “offense report mumber x, dated y, authored by z and consisting of pages a through b and supplements ¢ through d.” Witness statements should also contain more description that just “witness statements” or even “statement of John Doe.” At the very least, the date of the statement and the number of pages should be included. The degree of detail will depend on the specific item, but all need to keep in mind that ifit ever gets looked at, the degree of detail will be directly proportional. to the degree of protection provided to the party who needs the records. Lack of detail will make it difficult, if not impossible, for the party needing protection to achieve it. Last, but not least, if the writing is hand written, it needs to be legible, BRADY & THE STATUTORY BRADY-LIKE OBLIGATIONS Lawyers must be familiar with the requirements of Brady ¥, Maryland, which provides that due process requires the State to turn over any exculpatory, impeaching, and mitigating evidence. 39.14, however, goes beyond the requirements of Brady. First, under Brady and its progeny, impeaching material must only be turned over ata time and in a way that allows it to be used effectively at trial. In practice, this has resulted in far too many prosecutors failing to ‘disclose information that is impeaching when there is not a trial ~ even though knowledge of this impeachment material would materially affect a defendant’s decision to accept a plea bargain offer or to proceed to trial. As many prosecutorial leaders have preached for many decades, a defendant is not entitled to a fair guilty plea, just a fair trial. Whatever the merits of that argument, 39.14 eliminates that line-parsing, 39.14 (h) provides that “[nlotwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” __— SO pea Criminal Discovery in Texas-2014: ing of a eek lew world of Fairness ‘Imposed on this requirement is the basic requirement of 39.14 (a) that disclosures shall be “as soon as practicable.” This requirement climinates the game playing from withholding impeaching information unless and until atrial ‘occurs. Importantly, impeaching information may include ‘information or documents about an officer's professional status, pending investigations, unavailability, and sustained stievances. Italso clearly includes inconsistent statements from witnesses, at least to the extent that they go to a material issue, which includes credibility. Whether a particular inconsistency might tend to negate the guilt of the defendant will vary from case-to-case, but a prudent prosecutor should make disclosure of all inconsistencies, and let the chips fall where they may, lest they later be accused of hiding and failing to disclose information required to be disclosed under the statute. Given that the entire purpose of SB 1611 was to require complete disclosure of anything even remotely favorable and to prevent hiding of such evidence, lawyers on both sides and ‘he courts should remain acutely aware of the significant responsibilities of prosecutors to em on the side of disclosure. 39.14 (&) also makes it clear thatthe obligation to make such disclosures in ongoing and is not extinguished by a plea ortrial. It provides, {i} at any time before, during, or after trial the sate discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the cour.” Ifa prosecutor chose to make the disclosure only {to a court, a curious anomaly in the statute, the court should ensure that the disclosure is also transmitted to ‘the Defendant and defense counsel. Anything less would likely render a disclosure to the court alone an ethically prohibited ex parte communication, something prosecutors should also keep in mind in choosing whether to report only to the court. DISCOVERY AGREEMENTS 39.14 (n) allows the parties to agree to some discovery and documentation different than the statute requires. It provides, “{this article does not prohibit the parties from agreeing to discovery and documentation requirements, equal to or greater than those required under this article.” Importantly, it does mot allow for agreements that in any way lessen the statutory requirements — only those agreements equal to or greater than those required” by the statute, Gone are the days when prosecutors could condition discovery on an agreement to forego other discovery or discovery motions. ‘As a practical matter, this statute allows for the defense to directly obtain discovery of some things independent of the prosecutor. In many jurisdictions, it is common practice for defense lawyers to obtain some governmental and third party records by issuing a subpoena for those records. ‘This portion of the statute allows for those practices to continue. In large part, this can result in an agreement, coven implicitly, to shift the burden of obtaining some items by and from the prosecutor to the defendant. Often, with common items, such as dispatch logs, booking. photos, and MDT logs, the work-load trade off is beneficial to all concemed and makes the system more efficient. Admittedly, some prosecutors may choose to assume the ‘work-load on themselves, INTERACTION WITH PUBLIC INFORMATION ACT Some prosecutors, and more frequently other government agency lawyers, assert claims that provision of the Texas Public Information Act (TPIA) make information confidential and not subject to discovery. Aside from the fact that the TPIA expressly provides that its provisions only apply to public information act requests, 39.14 (m) makes this argument untenable by expressing providing that “[t]o the extent of any conflict, this article prevails, over Chapter 552, Government Code.” IMPORTANT EXEMPTIONS FROM 39.14 DISCOVERY There is one significant situation in which a copy of discovery may not be obtained, 39.14 (a) expressly provides that the discovery rights under 39.14 are, “ {subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code... ..” Article 39.15 provides that images of child pomography ‘and material described by Article 38.071 (some pretrial recorded statements of children under 13 years of age in some circumstances) may only be viewed and inspected at a facility under the control of the State and may not be copied. Tex. Fam. Code § 264.408 provides the same restrictions to child abuse videotape interviews. In such circumstances, 39.15 (d) provides that “property or material is considered io be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity forthe inspection, viewing, and examination of the property or material by the defendant, the defendant's attomey, and any individual the defendant seeks to qualify to provide expert testimony at tral.” In such circumstances, some courts have allowed transcripts of the videotapes to be prepared for use of the parties, usually with the restriction that they only be used for the purposes of the case and not otherwise. Given that lawyers could hand write every question and answer, verbatim, and thus produce a transcript, there is lite practical reason not to allow a professional transcript to be ‘prepared, It makes everything related to those videotapes far more yseful for both sides during the course ofa trial SANCTIONS ROR VIOLATION (OF THE STATE OR DISCOVERY ABUSE 39.14 contains! no express sanctions for the violation by any party ofthe provisions of the discovery statute. Though potential sanctions (against both sides) were proposed and discussed in the formulation of the legislation, it ‘was ultimately decided that such matters were better not specifically addressed. Frankly, both prosecutors and defense lawyers were leery about the application of express sanction, In the end, the consensus was that since courts already possess the inherent power to order remedial and sometime punitive (non monetary) sanctions, it was best left to the remedies that already existed rather than trying to write a set of rules or guidelines that could produce ‘unintended consequences for both sides. EFFECTIVE DATE AND APPLICABILITY SB 1611 becomes effective on January 1, 2014. By its express terms it only applies to alleged crimes committed on or after January 1, 2014, Thus, there will be a transition period during which we operate under two scts of discovery rules. Though efforts were made to have these new procedural rules apply to some or all pending cases, the Legislature ultimately decided to make them only prospective to offenses allegedly committed on or after the Act's effective date. CONCLUSION ‘The provisions of 39.14 are intended to minimize the horror and likelihood of another Michael Morton. They are intended to bring some basic faimess into criminal discovery and to make it less likely that there is ever again such a dehumanizing miscarriage of justice. If used appropriately and effectively, the Act will likely make resolution of criminal cases (either by plea or trial) less problematic and less a guessing game on the part of defendants and their lawyers. The changes usher in a new era that better enable defense lawyers to provide meaningful advice to their clients and create an opportunity for defense lawyers to more effectively provide constitutionally guaranteed effective assistance of counsel. The system and all of its participants will benefit and be better off both in the short and long term. i References in this article to 39.14 are to the amended version that becomes effective January 1, 2014, unless specifically noted otherwise. i Ieis doubtful that those arrested but not yet formally charged have any discovery rights under the amended 39.14 because they are not yet defendants. By its terms, 39.14 only applies to defendants, Nonetheless, it never hhurts to ask and those wanting discovery before charges are filed lose nothing by asking for it iif All emphasis in quoted material is added unless ‘expressly stated otherwise. soso (@) T We, the Jury, find the Defendant “Not Guilty.” Makes your hair stand on end, drops the weight from your Shoulders, and weakens your knees. No sweeter words are ever heard by a criminal defense attomey standing shoulder to shoulder with their client. Not Guilty verdicts are difficult to attain in Driving While Intoxicated (DWI) cases due to anti-DWI propaganda, tragic DWI consequences, and a cultural bias against alcoholism and DWI. This article shares eleven effective trial tactics for a variety of DWI cases. @rae REAL, BE YOU ‘As Gerry Spence says, “If you're trying a case on the facts, you'll lose every time,” Remember, the State chooses which cases they want to try because they think they can and should win. If the facts were on the client’s side and the client should win the case, the State will dismiss or reduce the case. Every case that goes to trial, the State believes the facts are so overwhelmingly in their favor, that they can prove the case beyond a reasonable doubt, So, what do we as defense lawyers have? We have passion, we represent a human being, we have a heart, and people like us. Imagine the jury, you, and the State arc lost in the desert! ‘The State stands up and says: I was a Boy Scout, the sun rises in the East and sets in the West, home is this way, follow me. And then you stand up and say: “I was Boy Scout too, and I also know that as well. My son’s name is Baron and my wife is Kendra. I love them both dearly and 1 will see them again. And when I do, I am going to wrap them both up and hug and kiss them.” Who are you going to follow out of that desert? Voir dire is derived from Latin and means “to tell the truth.” Voir dire is an opportunity to really and truly know ‘who your jurors are and how they feel about certain issues. ‘By the time the defense attorney gets to speak, the Judge and the State have already told them about the laws they must follow and that this case is a DWI. The defense ‘attorney needs to know some very personal information in order to effectively make strikes for cause. i. each jurors ‘own drinking pattem, who has been affected by @ rw. ACTICS By: Mark R. Thiessen TIAL RIAL — alcoholism, any one lost a loved one or friend to DWI, any ‘good or bad experiences with police officers, any biases, fic... Before a juror will open up and share their true feelings, they need to trust you, How can that happen instantly? Show them yours and they will show you theirs." Be vulnerable, Be genuine with the jury. Tell the juror something true about yourself, Tell them about you before you start asking about them. What should you share? You can start by sharing (1) the worst thing going ‘on in your life at the moment; and (2) the best thing. Also, promise the jury that you won't ask them any questions ‘that you won't also answer, Tell the jury your personal drinking pattern, whether you have’ been affected by alcoholism or DWI, and any fears or biases you may have in the case, This allows the juror to feel comfortable sharing with you since you are sharing with them, being ‘exposed and vulnerable. If you tell me, Ill tll you; show ‘me yours, I'll show you mine. In the end, it's only far. @oeaesumerion OF INNOCENCE “Innocent until proven guilty” is a phrase every ‘American knows by heart, but do humans. truly ‘understand the presumption of Innocence? Jurors. are often asked “how many of y'all wonder what [s]he did to get here? Where there’s smoke there’s fire...” Every juror wonders. It's unnatural not to. So, the skilled trial attorney needs to educate the jury om the strength of the presumption of innocence. There is only one presumption in a criminal case: innocence.” If there is only one presumption and that's innocence, can the jury presume the police performed the tests correctly? Can the jury presume the breath or blood. testis credible or reliabie? Can the jury presume that the client can perform any of the standard field sobriety tests, better than he did? NO. The jury may not presume anything other than the client is innocent. The presumption ‘of innocence is so powerful that the State must prove their ‘ease beyond A reasonable doubt, And, if just A doubt ‘remains, the presumption of innocence prevails. ‘Think of the presumption of innocence as a compass. Give each juror an imaginary compass to keep with them throughout the entirety of trial. If the juror is ever lost; doesnt know what to believe; who is telling the truth; the compass will point them home: Not Guilty. America errs on the side of freedom. The jury must never convict a hhuman being when a doubtquestion/hesitation exists. When in doubt, when confused, the compass points you home: Not Guilty ‘The legislature refuses to define beyond a reasonable doubt’ However, the legislature allows counsel to compare that burden against other burdens of proof.* Trial lawyers effectively demonstrate that beyond a reasonable doubt is the highest burden in the land and the top of any stair chart. The skilled trial lawyer will not only educate a jury on how high the burden is, bt also simplify this cold legal phrase. While the legislature may not provide a definition of beyond a reasonable doubt, the skilled trial attorney may provide an “example” of a similar phrasc.* Break the ‘phrase down to the words and what those words actually mean. What's a synonym of each word? Write the synonym next to each word of “beyond a reasonable doubt” on your display board. Start with your first juror and go down the row. Ifneeded, help the jury discover the synonym. For example: If you went beyond your exit, where did you go? If you have A pineapple, how many pineapples do you have? Stress the “A,” it's the shortest, but most powerful word in the phrase. How much is less than A? If my wife is acting reasonable how is she behaving? If you doubt there is water in a pool, what are you going to do at the edge before you run and jump in? Finally, ask the jury: if you have just A reasonable doubt at the end of this case, what must your verdict be? Prepare for objections from the State by clearly stating this is not a definition and just an example, Plan on revisiting this example in closing when stressing the enormity of the State's burden. Couple beyond a reasonable doubt with the presumption of innocence for an overwhelming case the State must prove. In the end, the jury should follow the law and return a verdict of Not Guilty because the State could not prove the case beyond a reasonable doubt. Eighty to ninety percent of jurors make up their mind after opening statement.* After a compelling and real voir dire, the jurors are anxiously waiting to hear the client’s version. Opening statement is when the lawyer gets to tell the jury what they anticipate the evidence will show. It is not evidence. Most routine trial lawyers start their opening off “may it please the court, your Honor, opposing counsel, the evidence will show...” You've just lost the jury. Unless the Court is formal and requires this, don't do it, It is an unnecessary safety blanket better left for law school mock trial competitions. Rather, stand up and tell them your theory of the case, followed by every good quality about your client, and tell them the rest of the client's story that ‘the State conveniently left out However, do not tell the jury anything that is untrue or that you cannot prove. Credibility withthe jury must never falter. How the defense attomey delivers an opening is just as important as what is said. A crafty trial attomey may attempt to deliver opening by “crawling in the skins” of his client and giving the jury a first-hand aecount of the rest of the story. Be prepared for objections, and let the Judge and jury know that you anticipate “the evidence will show” all ofthis to be true. Lastly, since whether the efient testifies is a last minute decision after analyzing the need at the close of the State's case, all of the client’s relevant background (military history, family, injuries, religion, awards, etc.) can and should be disclosed in opening statement, The jury must absolutely recognize how ‘wonderful your client is and why they need to fight for his freedom. Hopefully, 80-90 percent just made up their mind for Not Guilty. Now the jury is ready to listen, see, and determine what weight to give all the evidence. ‘The jury just listened to hours of monotonous, form read direct examination. Finally, the witness is yours, Don’t start out: “Good afternoon, Officer, how are you?” oF “This is the first time we've ever had the chance to speak about this case.” Hit him with a power question, grab everyone’s attention.* “Officer, if my client would have blown a 0.000 would you have let him go home?” Now the officer has two possible answers, each terrible. ‘mca (@) CONTINUED TIESSENTIAL DWI TRIALTACTICS By: Mark R. Thiessen ‘No. Look at the jury and recognize this answer. Even if the everyday citizen is wrongfully arrested and blows a 0.000, they do not get to go home. Hope is lost. There is no way out of the web. Let the State attempt to explain the charging process. Ifthe State or officer attempts to go into drugs, the quick attomey must capitalize by objecting or spinning this in the defense’s favor, “So you mean, ifwe as Citizens prove no aleohol in our system, you automatically think drugs?” Align yourself with the jury and help them realize there is no Way out. Yes, Make sure you repeat the answer, so the jury remembers it, Revisit this answer at the end of your cross. In the end, after the officer has stated he chose to arrest, based on a “totality of the circumstances,” remind him of that first question and answer. Ask the officer how, if he truly saw a loss of mental or physical faculties, could he let, them go? Stop there. Don’t ask that final question, Save it for closing argument and empower the jury to deliver the conclusion: the mental and physical were normal enough to let the client go had they blown a 0.000. After your power question, proceed with cross examination as usual. @aszanpane FIELD SOBRIETY TESTS ARE EASY...TO FAIL No doubt the State will argue and the trained officer will testify about the simplicity of the Standard Field Sobriety Tests (SFST). The trained officer almost always testifics that these tests are developed by “scientists” for every person and are very easy to pass. That same well trained officer will also testify that people routinely pass the SFSTs and are allowed to go home. Sure. It's important to note how the officer was trained and how “easy” the tests actually are. Commit the officer that he took a 40 hours course to be certified by the National Highway Traffic Safety Administration (NHTSA) to administer SFSTs. Additionally, the officer recognizes the NHTSA student manual as authoritative on the administration of these tests. The officer was only graded at the end of the course. ‘The officer was not graded on the first day after hearing how to administer the test only one time. And, ifthe officer missed 3 questions on the certification test, he didn’t fal ‘Additionally, the officer got credit for every correct answer, Infact, the officer has never taken a test where he didn’t get credit for correct answers. If you have a 100 question test and miss 3, what’s your score? Would you ever take a test where you didn’t get eredit for the answers you got right? Most seasoned officers will volunteer that NHTSA requires this type of grading and “scientists” developed the grading system. The jury should stil realize the unfaimess of the unique NHTSA grading method. ‘The jury should also truly understand these tests in case they wanted to try them, after the tral is over. Start with either test and walk through the exact instructions and break down how many actual instructions each test requires (15 for walk and turn, 13 for one leg stand).s# How many times did the officer give the client the instructions? How many times docs the officer demonstrate the test for the client? Does the officer allow the client to practice before being graded?” Was the officer allowed to practice for 40 hours and then some before he ‘was graded on his administration of these tests? Is the client told the clues the officer is looking for? Did the officer tell the client it only takes 2 clues to indicate intoxication? Did the officer tell the client that injuries, age, or weight may affect the results? Make sure to write these answers on your display board for each test. Next, walk through each clue and show the jury the meticulousness and subjectivity of each clue. Most jurors will appreciate the defense attomey showing them just how easy these tests ful. @rercsritsr. FIFTEEN MINUTE VIOLATION ‘The third prong of Kelly states: the technique applying the theory must have been properly applied on the occasion in question. In order for a breath test to be valid, the officer ‘must observe the client for atleast fifteen minutes prior to the breath test." The Department of Public Safety produced what is known as the “21 Minute Video."** The video shows examples of invalid fifteen minute waiting periods." The first example is when the officer parks his ‘carat the station and opens his door to get out and retrieve ‘the suspect in the back seat. Department of Public Safety @axoon TEST - MCNEELY & BULLCOMING clearly recognizes that the officer cannot see through the roof ‘of his car and temporarily loses line of sign with the suspect as the officer gets out to remove the suspect. Always request ‘the dispatch records and mobile data terminal (MDT) records to ascertain the precise time the officer arrived atthe station and possibly started the fifteen minute observation period after getting the client out of the back of the ear. Many times officers just rush the client right in to the Station to provide a sample. ‘The well prepared defense attomey may have indisputable evidence that a proper fifteen minute waiting period was not observed. Couple this violation with Kelly and Texas Code of Criminal Procedure § 38.23 to suppress the breath test. secs wwssromienne No machine is infallible. The Intoxilyzer SOQOEN and ‘Texas Breath Testing have certain acceptable ranges of error. Depending on the particular facts, the skilled DWI defense attorney may walk down the client's breath test result using the machine's own acceptable ranges of error. First, the client’s first breath sample must read within 0.02 of his second breath —sample.** Hypothetically, if a client blows a 0.09 on the first sample, his next breath sample must measure between 0.07 and 0.11 in order to be valid. Additionally, Texas Department of Public Safety uses the lower aumber of the two breath samples in order to give the benefit of the doubt to the client. Second, the reference sample must ‘measure within 0.01% of the reference predicted, which is usually 0.08, Third, the third digit of the breath result, is completely random and should be truncated.! This ‘means that the machine could read 0.00 as anything up to 20.009 acceptable range of error. Fourth, the client's ‘temperature can affect the results of the breath test For every one degree Celsius the client's body is above 198.6 degrees Fahrenheit ot 37 decrees Celsius, the breath test is 8.62% high" And the temperature of the simulator solution is already allowed to be plus or minus 0.2 degrees from 34 degrees Celsius." Breath test scores of 0.13 and below should be vigorously scrutinized due to the inherent unreliabilities in the Intoxilyzer SOOOEN and the Texas Breath Alcohol Testing Program. In April 2013, the Supreme Court effectively established “‘no-refusal” weekends every day ofthe year." McNeely recognized the ease in obtaining a blood search warrant in ‘most metropolitan areas; henceforth, barring warrantless blood draws without an exigent circumstance" The State hhas fought back by declaring year round “no refusal"* ‘However, in the case where no warrant exists, the totality, of circumstances of the particular case is necessary to determine whether exigent circumstances existed making, the ascertaining of « blood warrant impractical. The State must show the impracticability of obtaining the search warrant justifying the exigency exception to the warrant requirement. Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay.™ In Clay, the arresting, officer swore to a blood warrant probable cause affidavit ‘over the telephone and then faxed the signed affidavit to the Judge Arguably, it doesn’t get much easier to obtain a blood search warrant. Additionally, any phlebotomist_ must be properly qualified as a “qualified technician” for warrantless blood draws In all blood cases, remember that Bulleoming is still good law that requires the actual analyst to testify before the blood results may be admissible, regardless of ‘warrant issues. €é | DISCONNECT DEFENSE ‘Whether dealing with a blood or breath test, all high tests (0.16 and higher) are ripe for the Disconnect Defense DD"). The disconnect lies in the science not adding up to the machine results. The foundation of the DD is sobriety evidence or common sense reasons for mistaken intoxicated behavior. In most cases where the DD is applicable, the client's video is exculpatory for the client. ‘Additionally, obtain the client’s medical records or other evidence needed to demonstrate normality for the client and not intoxication. CONTINUED # TIESSENTIAL DWI By: Mark R. Thiessen In breath test cases, you can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring devices, ie. thermometer, Taxalyzer SOOOEN , Doppler 5000, Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see, ie. common sense. For example, the importance of embracing common sense by relating it to a dire consequence of being wrong, i.e. brain surgery if a thermometer reads 110°F, jail time for failing to pay taxes, ot a natural disaster. Analogize your hypothetical machine with deficiencies in the Intoxilyzer: (1) 20% acceptable range of error; (2) self checking for accuracy; (3) no warranty for merchantability or accuracy; (4) recalled in multiple states; (5) newer model available; (©) citizen cannot purchase trom manufacturer; (7) ‘manufacturer refuses to provide source code; (8) not available for independent scientific testing; (9) destroys the only direct evidence of sobriety/intoxication when the State had the ability to save that evidence: (10) operator thas no idea how the machine works; (11) “scientist,” who does, rarely checks it in person; (12) any inconsistencies or strange occurrences found in test records; etc... In blood test cases, make sure to walk the jury from cleaning the client's blood draw site through the chromatogram. Depending on the laboratory and people involved you may find: (1) contamination in the blood draw room; (2) expired materials; (3) improper site cleansing; (4) ‘improper blood draw technique; (5) mishandling of the evidence; (6) break in the chain of custody; (7) human error in the laboratory; (8) pipette problems; (9) sample expiration, contamination, or other problems; (10) contamination inthe injector por, y-spitter, ‘columns, flame ionization detector; (11) source code issue; (12) sloppy chromatography, etc... Each step of the way, educate the jury on possibilities of contamination, carry ‘over, or switching vials. Inspect all the chromatograms in the run to further validate your theory. Regardless whether dealing with a blood or breath test, each is susceptible to the DD. The skilled attorney must sew the DD through the entire case, from voir dire to closing. The yerdict should be an obvious decision that the machine or those running the machin made a crucial mistake, rather ‘than your client’s body defying the laws of science. TRIALTACTICS Use the totality of the circumstances against the State by arguing the totality of sober circumstances, Intelligent human beings believe what they know with their own senses to be true instead of blindly relying on a machine result that defies common sense. @ STORYTELLING CLOSING ARGUMENT Closing argument gives the skilled trial attorney the opportunity to seal the case and the client's acquittal or one last chance to steal the case from the grasps of a dry prosecutor. By closing, the jury has been sitting quictly for days, listening to the State continue ad nauscum about the facts. The last thing the jury wants to hear is a recap of al the facts. After all, the jury is human. They want Atticus Finch, Vincent “Vinny” Gambini, Erin Brockovich, Lt Daniel Kaffee, Franklin and Bash, Denny Crain, or the Lincoln Lawyer. Tell them a story. Put on a show in closing, Sit and think about the theory of the case and how ‘you can relate that theory into an experience that elicits the ‘desired human reaction from the jury. Whatever story that ‘you relate tothe case, make sure it’s genuine, The jury can tell when you are lying, or you don’t believe your own argument. Again, like in voir dire, be vulnerable, show them yours" Whatever you choose, the closing should ‘be So raw and powerful that you give the jury the righteous indignation to find your client Not Guilty. DWI consequences include prison, loss of driver’s license, fines, and foreign travel _ restrictions. Accordingly, DWI trials are prevalent in every ‘courthouse. Every criminal lawyer will represent 2 DWI client at one point in their career. DWI cases are ‘numerous throughout the State. Mothers Against Drunk Driving (MADD) lobbies vigorously against DWI cases. We as defense lawyers, must break through the bias and hatred for DWI and humanize our client and their story ‘The jury should return a Not Guilty verdict because they are following the law and making the State prove their ‘case beyond A reasonable doubt. i Thanks tothe one and only Gerry Spence ‘or this example. fi__https/ ‘Thank you, Gerry Spence. iv Thanks toJ, Gary Trichter and his wonderful tutclage on the presumption of imocence, YY Geesa v, State, 820 S.W.2d 154 (Tex. Crim. App. 1991). vi Contreras V. State, 2012, WL 5285917 (ex.App.—Waco, Oct. 25, 2012); Fuller v, State, 363 8.W.34 583 (Tex. Crim. App.2012). vii Stair chart from the National College of DUI Defense: hp:/ php type~Trial-Graphics Vili Thanks to trial wartior Steve Gonzalez for this example. ‘x Johnson, James; Jury Arguments, Winning Techniques; ‘Michigan Bar Youral, page 36 (March 2011); hitp:/vinsoncompany.comypdt/How.to_Perstade Jurors. pat x Thanks to my officemate and trial warrior Jed Silverman, xi Sce Gerry Spence and the Trial Lawyer's College. xii Thanks to the amaving Kent Schafer for his cross examination techniques. ili See NHTSA Standardized Field Sobriety Testing Stadent Manual August 2006, pg. X-3-5. xiv. Kelly», State, 824 S.W.2d 568 (Tex. Crim. App. 1992). xv See Texas Breath Aleohol Testing Program. ‘Operator Manual, pg, 49 and Texas Administrative Code Section 19.3(a) and (6). xvi_ Sce Department of Public Safety 21 Minute Video. Call me fora copy. xvii Id will Hd. xxix Sce Texas Breath Aleohol Testing Program ‘Operator Manual, pg. 13. xx Sce Texas Breath Aleohol Testing Program. Operator Manual, pg. 13. xxi See Gulberg, RG, Statistical Evaluation of Truncated Breath Alcohol Tes Meaturemens, Joumal of Forensic Sciences, LJFSCA, Vol 33, No. 22, March 1988, pp 507-510; Gllberg, RG, Distbution of Third Digit in Breath Aleohol Anadis, oural of Foreasic Sciences, Letters to Editor, Date and Volume Unknown p. 976-978 wil Id wail See Fox, G.R and Hayward, 1S, Effect of Hyperthermia (on Breath-Alcokol Analysis, Journal of Forensie Sciences, JESCA, Vol. 34, No.4, July 1989, pp. 836-841, vaiv I. xxv See Texas Breath Alcohol Testing Program Operator Manual, pg. 9. ravi Missouri v. McNeely, 5690S. _, 133 S.Ct. 1552, 1555 (2013). ‘wwii Id. vi hp/abloal go comer seton-newsoealBit-91 76628 xxix MoNeely, 133 S.Ct. at 1557-60. xxx Clay v. State, 382 8.W.3d 465 (Tex.App.—Waco 2012), review granted, (June 27, 2012). roxxi ld a 465-46. xii Cavazos v. State, 969 $.W.2d 454, 456-57 (Tex.App. - Corpus Christi 1998, pet re @); ‘TEX. TRANSP., CODE § 724.017(0); see also Cordero v. State, 2009 WL 3231504 (Tex.App.—El Paso Oct. 7, 2009), xsi Bullcoming v. New Mexico, —US.—, 131 S.Ct. 2705, 180 L.Ed.24 610 (2011). vaaiv Gerry Spence. alt ethics hotline 713°518°1738 ‘#®BLACK ROBE? T’ve labored long and hard for bread For honor and for riches But on my corns too long you've tread You fine-haired sons of bitches - Black Bart, 1877 California Stagecoach Robber by, haba Plt Black Bart was one of those men who got fed up with crooked Judges, Sheriffs, Lawyers, Proseeutors, and other people’ who were supposed to be honorable. My friend and colleague, Steven “Rocket” Rosen has a sign that says “If assholes had wings, this place would be an airport”. Rocket wanted to post it on the courthouse door in Houston, but I told him that was not a good idea. We talked about the stress that ean be felt. upon. ents the building. Sometimes long lines of aecu: sitizens. and their families are standing in the rain waiting to go through the metal detector to enter the Harris County courthouse. Law enforcement and ambulances are taking people away. Police are arresting disorderly family members erying and screaming in the hallway. ‘This just adds more unnecessary stress. Some lawyers refuse to get a badge that allows entrance to the courthouse. Rocket asked me to write about the stress and confusion lawyers ncomater when doing their job, Rocka also has a sign hanging in his office that says “You don’t have to be erazy to work here, but it helps, Remember, we are all fighting’ some kind of battle”. Most lawyers try their best to defend their clients. ‘The odds against the citizens accused are overwhelming. That is why all members need to be ready, willing, and able to help each other, Mr. Richard “Racehorse” Haynes says the “E” in Email stands for “Evidence”. Now the “T” in ‘Texting can stand for “Trouble”. A third generation judge has left the “throne” because of texting a prosecutor during a trial. There are rumors that. this is not. an isolated incident. ‘What happened to honor and integrity? Abe Lincoln and Clarenee Darrow would be.turning over in their graves if they saw some of the unethical behavior in some of our 254 counties. Whispers and meetings, if ex parte, need to be reported as was the one with the texting judge. As a lawyer for some of the judges in Harris County Said, “it, was a perfect storm of stupidity.” The judge in question violated whieh states, “[a] judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The actions of the judge are of the type that bring public diseredit on the judiciary and on the legal profession in general. Contrary to what the publie believes, lawyers are humans too. Until they need their services, citizens complain about law enforcement, doctors, and lawyers. Then we all become very. important. Lawyers used to be looked up to, as many of the leaders in the community were doctors and lawyers. Crooked dealings by: defense lawyers, prosecutors, judges, and enforcement: have eroded the publie trust in t] legal profession. Politicians who speak, as the Indians say, with a “forked tongue,” are close to the bottom of public trust. Used ear salesmen are no longer at the bottom of the list. When ja get caught texting the prosecutors during trial, they are setting a bad example for those dedicated souls who go to work every day to help accused citizens who have made a mist have been wrongfully charged. Men and women died and suffered to uphold our Constitution. Be they judges, prosecutors, or defense, lawyers, when lawyers are unethical, snch behavior dishonors all those deaf sonls who fought to make America the Land of the Free and Home of the Brave. No one is perfeet and we all make mistakes, but cheating when human lives are at stake is an unpardonable sin. Which is worse, Black Bart who robbed stagecoaches of gold? or a Black Robe who robs citizens of their liberty? a you need help or find the walls closi in x can call the HCCLA ethies he (713) 518-1738 or the TDCLA cthies hotline at (512) 646-2734. Also available to you is the ‘Texas Lawyers Assistance Program at (800) 343-8527. ‘ is EZ SL ORDERED TODAY INSTALLED TODAY GPS & RF reves Xu Monitors Nea lly PNT) Beles 713.228.3969 lark Bennett, Pat McCann, & Jo, Certmtnac Derense CHeck-tsTs by Mark Bennett ‘Your pilot uses them. Your surgeon wses them. The guys doing it your way at Burger King even use ther. You should use them too. Criminal defense—lke landing on cirplane, repairing « hear, cof making a double cheatebucger—is an art as well as © science, There ore times when we can improvise, and times when ther only one right way to do things. For the times when we con improvise, we must have experience and proctice—"technique to bur.” For the times when there's only one right way to do things, though, we should have checklists. For example: preservation of error when your time is limited in jury selection: On the record. 1 Timely end spectc objection to time limit. 1D Request cdditional time. 1 Dont try to prolong the voir le 1D Moke record of questions you would ask 1D Questions must be: ‘a. Relevant, b, Not repetitious; nd €. Not vague or open-ended. 1 Stow wich jurors that you were unable to question served on the jury. You might think, sitting in your office reading the Defender, that youll remember to do all of this without a checklist. But can you be sure that you will when you haves't gotten @ third of the way through your voir dire outine, your client (facing 25-to-ife) is tugging at your sleeve, and the judge's egg timer i ringing? A checklstcllows you to delegate the job of keeping track of things ‘hot must be done to a piece of paper. As Racehorse Haynes says, "Braine ore for thinking. Pencil ore for remembering” Your checlts should bein wring. Having it in your mind isnt good enough. If you have © written checklist ond you get interrupted after the thicd item becouse your briefcase ison fre, when the fire is out you'll know you need to cetur tothe fourth item. @ wens Without @ writen checklist the choos of o briefcase fre might moke you lote your place and skip that exial fourth Hem. Pilots have checklists for every anticipated station: “Preflight Inspection.” “Pre-manauver check." “Post maneuver check." “Engine fire in igh." “Cabin fre in Fight.” So should we, "Cient aoquited.”, "Cllen convicted by jury.” "Hung jury.” ‘Our checklists should include everything you must do { Request notice of extraneous offenses, Get copy of charging instrument, CO Get offense report) including all decions you must make (TD Decide whether fe file pplication for probation Checklists have their ints, though. They don't help withthe creative, Interactive, improvisational stuff. So while you might have 0. checklist of ropes to discuss in vor dire or erost-exomination, having list of specific questions to ask or answers to elit sa formula for foilure. So 1 Weiten checklists. For ail encipated contingencies, 1 Coverall mandatory actions (ieusing decisions). 1 Cover no creative actions. For more on the reasoning behind checklists, and some thoughts con what a good checklist is like, | recommend “The Checklist Manifesto,” by Atul Gawonde. His rules for checklists are geared, ‘to what I'd call tactical (what to do when something must be done) checklists, but we often have the lesure to follow strategic (what todo when nothing has to be done) checklists—checklits of things to do before we even get in the airplane or set foot in the operating theater. So some of our checklists will be much longer thon his suggested for very short list. I've been gathering ether people's checlis ond combining thom to czeate 0 thorough set of criinal-lefense checks. F you'd ike 10 contribute tothe eff, please email me at 1 | Meertne 4 Porencta New Cutenr? | Ten Tpinscs You Muse Have Berore You Meer by Mark Bennett Th moeracr oh enaine oto Yum EBT A OE Desrerer ciers's WEST > nearer cfe cna Pe: Sele T ISTP Seneca com ceo’: St Wo CLECE EDT sua! re urpen eeRT Uh CoE pe Neon oe GMRENS PHSTRIMENT: p Peon Drerercr Clank Pe aout etter ABS; exex on Emacs! (Y REET Te canPLAENT, THE DEGRMTEO THE DOFETPENT “e heart ce eTArure oem WEEK TN cTONT FE CURED Yau wwe Wesco Late a You (hone westuml Leos Probl)? Go dae ain on rroerwrTcoe wn TRAE errr fo cTATUTESLEGEESTATETES TE ARELEMEE ig, Aeowy or ALEHaLY suey ibe ou weet nao ast Ge £1 nH) cunce. Bote Me, SADLY, NT » crimes en sien aeOOH OEY OECTISNTSTE SET» p. Gewaenau.ra rn. ctor sw UCLUDEN Ml OPER: cacti. MEDEA WO Mt NEVE MEDEA comes wana Font comic's we (£000 2A THE cue nf coUPECUAS SOIL MEDEA NO EME MEE canwarns reTONT), a, Prson cess. xrureny oct (ERan DESTRSCT. ceed wencr Te mp RULEcoeTAcon). Pace cv REET ORY 4M COMPLAIN (evan Desteset Cit g Pa oroary insane Ta o-TERT ot TM RESPOEERE ET berries 10, A pear cowreact a ens’s A comredct 8 GET YOu STIRTED. ‘errmii snsrna.contuls 6O6IOPEN Sines 2 OCR pals veneers wo russeokrhcon. i en OC TRA RE OIE 308 Fo Luc wo RENEW: GueLORTERS DON'T CURSE BY TH suet! You Can Attoro An Asstscanr by Patrick F. McCann How many of you have spent on entire Soturday trying to reorganize files, whether electronic or paper? So, an eight-hour Saturday, even at an appointed hourly rate of say one hundred dollars per hour, is eight hundred dollars let to you. That buys € rice hunting rifle, a new suitor outta plone icket and one night hotel stay to Vegas; well, you get the idea. As another, how mony times hove you spent two or three houts driving, perkng, sitting in on elevator, then waiting inthe line atc clerk’ office, whether to copy an item from a file orto file something? AY @ very reasonable attorney's rate of one hundred fifty dollars an hour, that is thre to four hnded dollars you will nt see again So, the questions becomes..what is your time worth? Do the math. ‘ne hour of your time at $150.00 per hour pays for the eight hour shift of fifteen dollar an hour assistant, plus parking, with enough to buy coffee for the two of you [figuring thote faney latte thingies in a lorge size). lst a free Saturday worth that? Two hours of billable tine per week pays for another shift, Thus two or three hours of your time means you can afford « part time assistant, who will more than earn their pay if you help them to do so. Here are some of the things a new axsistant can do which require misimal or no training - copies, organizing files, fling [once they know where and to whom the flings gol of pleadings, motions, mollings, getting stamps ond office supplies, dropping off items to other attorays/elints. With some care and training, [ond every ‘hour spent training @ new person is an hour thot reaps gold] 0 good reliable assstant con gradually learn to update your calendar, ‘answer the phones, contact clients and courts on your behalf when YYou are late or in another county, take payments from client, help {You prepare ond fle vouchers on appolted cases, etc, Alternatives to 0 ful or parttime assstont ‘There ore many ways fo use some ofthe essential services that an cssstant performs without actually getting an assistant. Let us start with @ quick ist, @ wens Dictation Services & Apps If you area smartphone adc, get rogn dictation and lear how 87 and efficient it st create an email, text oF notes by talking into your smartphone while diving or walking or standing around having « smoke. Si has some of is Function onthe iPhone, but frankly not os fest. There are ako seeretariclzrvices that wl type up lets end correspondence by dictation on tape or vie MPS fle. There i a service called Speck-Wite which does tis speccally for lawyers, and they have bath software for taking MPS fles from « digital recorder or your compute, AND they vil et you call into diate « motion over the phone. Simple, affordable, and no messy employee problems. If one hs a general practice, and is confortable working from hhome, efiing makes good sense, ond will be mandatory for civil matters in Texas in 2014, This saves one a great deal of time cond effort, and should be embraced os ¢ way to avoid that nasty rush hour traffic. itis mandatory for federal criminal filings, tnd will likely become easier ond possibly mandatory for state criminal flings ond eppellate filings ot some point, though we ore ‘ot there yet. Likewise there are office organizing services and secretarial services that will go to your office and create, then maintain, c simple filing system ond help erganize your files such that your workspace becomes amazingly efficent. They can be hired on on "as-needed" boss, and it sil makes the same sense economically fo pay them sixteen bucks an hour to do this while you are billing four hours of productive motion crafting on a cose ‘at 150.00 per hour. Free Help Last, there are some ways to get some rsitance on the true "heap", and they are celled inte. Mos! law schools and para legal programs inthe area have sich wiling serfs, er..people.. avcilable for either academic credit or real world experience necessary to get them paying jobs [eventually]. | hope this has proved useful and at least stimulated some thoughts con how your practice con grow with ust a litle help. Many hands make the load lighter. Good luc! PP) SETTING UP CueENT FiLes by JoAnne Musick So, you have «new cient; whether thot client hired yeu or {you were appointed by the court, you need to get © new file opened ond set up so you can get to work. In my office, we use a checklist (below) to make sure we have preliminary formation about the client and his case, Every client needs «file, even if you choose a paperless office! We start with a contact sheet (ours happen to be on yellow paper to make them easy fo spot on a desk and in a file). The contact sheet is created when the client (or his family) first calls the office. This is replaced with an order Cf appointment for non-hired cases. The contact sheet has preliminary information fom the call so that the attorney can start fo evaluate the case and keep notes. This contact sheet will exist on every potential client contact. It tracks when an ‘ottorey speaks with the potential cient, what was discussed, whether on in-person meeting was set up, ete. So even a call that doesn't result in ai hiring Is tracked ond kept for conflict purposes end inetitutional memory, if you will. We have found that « call from a client “shopping for a lawyer” will often resvt in a later call to set on appointment or meet. ‘And with the contact sheet, we will know everything that has been previously discussed with the client or family. Once the cliont hires, that sheet ends up in the client file. (Our office pulls the JIMS or other distriet clerk data on all w clients and potential clients (current charge and any Fs). So this is included in our checklist for setting up the file. When the file is created, the legal assistant checks to ‘make sure all of that information is included in the new file, fe hes dlient (retained or appointed) fil our a “client information sheet”. This two page document has name, address, phone numbers, relatives who may know clients whereabouts, the charge or legal matter, a space fer client to self-report priors (so we can cross chect), the compleinan'’s information (when known), and a space for client to add anything he wishes for the attorney to know up Front It's also important that every client sign @ contract, so we include this as @ part of our checklist. (If appointed, the order of appointment serves the same purpose.) We send on engagement letter to each client, confirming that we are retained or appointed to represent them and what they can generally expect. It also gives instructions to clients about the use of social media, not talking to anyone: ‘other than their lawyer, ete. (Our checklist is @ simple one page list for opening the so that assistants and lawyers alike can quickly make sure that all preliminary information is inthe file ond evailable as work begins. Again, this is ust an example of how we ‘open our files, and I hope itis of help to those starting thelr practices or looking to hone their procedures. ___ Contact Sheet/Yellow Sheet JIMS Information ___ Client Information Sheet filled out ___ Drivers License or other identifying documents ____ Contract Executed (signed by all parties) ___ file folder created ___ Initial Court Date Colendared _____ Enter Client Information in Contacts ____ Engagement Letter to Client ___ Billing Information Entered Pleadings (Indictment information it Motion to Sub (when necessary) ___Attomey of Record (filed with court) ___ Offense Report Requested / Received: Juvenile OY nb) HCCLA Banquet ll May 8, 2014 - a ae Ce CU a at Eg Check out the Facebook Page Lem Uem lca) (oN eee vO ETT Ae Spoloant Laws, and Much More Bes Nang ‘Telephone number: Fax: MEMBERSHIP APPLICATION Email address Website: _ Date admitted to practice: ‘Would you like to join the HCCLA listserv? ‘Type of membership (dues) Regular membership ($150*) — Public Defender (State/Federal) (S75*) riminal defense practice) (S7: 2 ner (S754) Paralegal Member (SS0*) Student ($25) facebook a Find us on Date Signature of applicant Endorsement 1, a member in good standing of HCCLA, believe this FULL PAGE [INSIDE] :: ST00/SSUE:: $2.520/YEAR sppleant to be a peson of profesional ompeteny. integrity and good moral character. The applicant is actively INSIDE FRONT COVER :: $B00/SSUE « $2,880/YEAR engaged in the defense of criminal eases. (For paralegal this applicant is employed by member in ood standing). INSIDE BACK COVER :: $750SSUE :: $2,700/YEAR ‘BACK COVER :: $B00/SSUE :: $2,880/YEAR = Date ‘Signature of endorsing member 2/3 PAGE :: $600/ISSUE :: $2,160/YEAR 1/2 PAGE: SS00/SSUE: $,800/¥EAR PRINTED NAME OF ENDORSING MEMBER Cae eee Mail this application to: 1/4 PAGE :: $250/ISSUE :: $900/YEAR HCCLA P.O, Box 924523 BUSINESS CARD SIZ : $125/ISSUE : S4S0YEAR Houston, Texas 772924823 Distribution 1000 copies per issue. 7 IF paid Between April 1 and December 31, this amount For articles and other editorial contributions, constitutes payment of dues until May 31 of the following Contact JoAnne Musick at 822-448-1148. Soares pl bones Denary Tend Moc 31 te bal Fated amouat snd cover memberahip unl May 31 of the To place an ad contact Earl Musick same year. 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